May 25, 2007

Random Details from the Presentencing Memo

First, it was clear from very early in the investigation that Ms.
Wilson qualified under the relevant statute (Title 50, United States
Code, Section 421) as a covert agent whose identity had been disclosed by public officials, including Mr. Libby, to the press. (p. 12)

Here are some other tidbits of interest.

It's All About Dick

First, there are the several times when Fitzgerald suggests that Libby's lies served to protect Dick. First, this mention, where he doesn't name Dick.

First, they made impossible an accurate evaluation of the role that Mr. Libby and those with whom he worked played in the disclosure of information regarding Ms. Wilson’s CIA employment and about the motivations for their actions. [my emphasis]

This one where he points out that Dick may be behind the whole thing.

Moreover, in assessing the intent of these individuals, it was necessary to determine whether there was concerted action by any combination of the officials known to have disclosed the information about Ms. Plame to the media as anonymous sources, and also whether any of those who were involved acted at the direction of others. This was particularly important in light of Mr. Libby’s statement to the FBI that he may have discussed Ms. Wilson’s employment with reporters at the specific direction of the Vice President.

This one where he suggests Libby and Cheney coordinated Libby's story.

The evidence at trial further established that when the investigation began, Mr. Libby kept the Vice President apprised of his shifting accounts of how he claimed to have learned about Ms. Wilson’s CIA employment.

And my favorite, suggesting "coordination." You know, as in conspiracy...

To accept the argument that Mr. Libby’s prosecution is the inappropriate product of an investigation that should have been closed at an early stage, one must accept the proposition that the investigation should have been closed after at least three high-ranking government officials were identified as having disclosed to reporters classified information about covert agent Valerie Wilson, where the account of one of them was directly contradicted by other witnesses, where there was reason to believe that some of the relevant activity may have been coordinated, and where there was an indication from Mr. Libby himself that his disclosures to the press may have been personally sanctioned by the Vice President.[my emphasis]

Given all those mentions who do you think Fitzgerald was thinking of when he wrote this?

Peremptorily closing this investigation in the face of the information available at its early stages would have been a dereliction of duty, and would have afforded Mr. Libby and others preferential treatment not accorded to ordinary persons implicated in criminal investigations. [my emphasis]

Then there's the bit where Fitzgerald gives Comstock her due. (Doo? Doo doo?) He doesn't mention the standing ovation Libby's shills gave him last week. But he does note the tripe posted on the Libby Defense Fund website.

These arguments mirror comments made by the defense’s public relations team and posted on the defense website, www.scooterlibby.com, before, during and after the trial. The submission of these arguments on Mr. Libby’s behalf is well known to Mr. Libby and his attorneys, and while they have not to date explicitly embraced these arguments, neither have they disavowed them. The government submits that these arguments are completely at odds with the kind of contrition that normally is a pre-condition to leniency.

As I sit here, Jane's working on a post on this passage. And no one--no one besides Digby, anyway--does Comstock justice like Jane does. So look for that post. Oh, here it is.

Why Armitage and Rove Didn't Get Charged

And for wingnuttia, Fitzgerald provides this explanation of why Armitage and Rove didn't get charged:

Finally, it remained to be determined whether the accounts of various persons who disclosed the information to the media were truthful, and, if not, whether any false statement made could be proven to be intentionally false.

Huh. You mean a lawyer isn't going to charge something he doesn't have a lot of confidence he can prove? Go figure.

Judy's Success Story

Finally, this passage deserves some close reading.

While not commenting on the reasons for the charging decisions as to any other persons, we can say that the reasons why Mr. Libby was not charged with an offense directly relating to his unauthorized disclosures of classified information regarding Ms. Wilson included, but were not limited to, the fact that Mr. Libby’s false testimony obscured a confident determination of what in fact occurred, particularly where the accounts of the reporters with whom Mr. Libby spoke (and their notes) did not include any explicit evidence specifically proving that Mr. Libby knew that Ms. Wilson was a covert agent.

Here, Fitzgerald is coming as close as he ever has to commenting on whether he believed that Libby violated the IIPA statute. In the guise of explaining why Libby wasn't charged with the IIPA (Fitzgerald makes no mention of the difficulties in prosecuting an IIPA case given Libby's ready access to one of the best greymail specialists in the country), he says that "the accounts of the reporters with whom Mr. Libby spoke (and their
notes) [that would be Judy] did not include any explicit evidence specifically proving that
Mr. Libby knew that Ms. Wilson was a covert agent."

"Explicit evidence specifically proving."

In other words, there was a good deal of evidence suggesting that Libby knew Plame was covert. Like the way he met Judy offsite and called her on a safe line and so on, not to mention his description to Ari that it was "hush hush" and his attempt to shush David Addington while he was inquiring about paperwork relating to Joe Wilson's earlier Niger trip. But Judy's testimony and her notes did not include any "explicit evidence specifically proving" that Libby knew Plame was covert.

That WINPAC ruse sure worked like a charm, didn't it?

Congratulations, Judy. In addition to helping drum up the biggest foreign policy catastrophe since the Greek expedition to Syracuse, you succeeded marvelously well at protecting your buddy Scooter.

Heh Heh. Don't blow off all your steam just because the sentencing memo was posted today, a Friday before a holiday weekend. We have a full ten days until sentencing and we want the wrath to crescendo at the right moment and when the eyes of the judicial "decider" are focused. I want a report tomorrow on whether these sitting ducks pop up for slaying even in your sleep. My bet is they will. Enjoy your weekend.

If 2 and 1/2 years is the best we can get here, with jail time during appeal processes, no appeal approval, and even with a pardon, I'll take it. These people are loathsome. They are proud of this and the rest of their destructive, selfish actions? They giggle at their "success".

ew If I remember correctly you live-blogged during the trial that Comstock (I think) had ashes on her phohead for Ash Wednesday. Good thing for me I was sitting down for that one. Ashes to ashes, dust to dust.

I certainly think the Cheney stuff in the memorandum is significant. And I've also strongly suspected for a while that Fitzgerald did in fact believe that Plame was covert under IIPA, though to get there required some fairly acrobatic interpretation of the August 27, 2004 affidavit's 28n15. The significance here is that we've got a flat declarative sentence from Fitzgerald that they believed Plame was covert under IIPA. And that means that Toensing et al are simply flat wrong.

Because her argument is not that Plame was not covert, which I'm sure she'll somehow manage to keep claiming. Her argument has been that Fitzgerald and the investigators knew early on that Plame was not covert, and therefore IIPA could not even conceivably have been violated, and therefore the entire premise of the investigation was flawed and it should have been terminated immediately, thereby eliminating the very possibility of Libby committing the acts for which he has now been convicted and showing the inappropriateness of the whole thing.

But that is just simply wrong, we now can say with certainty. It is the premise of Toensing's argument that is simply wrong. Fitzgerald and the investigators became convinced early on that Plame was covert under IIPA, so the remaining questions were what the relevant actors knew about her status and what their intent was in disclosing classified information about her to reporters.

Oh yeah, Novak also threw a fit about whether Plame was covert under IIPA or not.

And of course since the definition of covertness under the poorly written IIPA is a statutory matter, to prove it, it would have to be proven in court. But we now know that the government believed that Plame was covert under IIPA. It undercuts a major criticism of the investigation from Team Libby.

pwright - You can hope, but the odds are not good. My last merlot induced calculation had the sentence at 29 months. I am toying with amending that to 26 months. Many out there seem to feel I am being to optimistic as to length; but I have a feeling Walton still feels a little punkd by Libby and his team, as well as put off by their dog and pony show since the conviction. Keep in mind that Walton has known all along the true status of Plame and Brewster-Jennings and can see right through the disingenuous and duplicitous bunk to the contrary.

Jeff - I fully believe that the Court long ago made a specific determination that she was indeed covert under IIPA during a pre-trial evidentiary consideration under CIPA, but it is not part of the public record. EW will undoubtedly comment on this, but that has always been my analysis. Additionally, if you are around good prosecutors, you learn to read between their lines. When Fitz made the statement at the filing og the charging document, he effectively stated that he had determined as a matter of fact and law (at least for his purposes as the representative of the US Government) that she was covert under the act.

Before testimony, Goodling was the black box--we didn't know what was inside, and it was less than we hoped, but more than nothing.

Now, Judge Walton is a black box. He can take judicial notice of the corruption of the DoJ by the Bush administration, he can place the Plame case in the context of a larger abuse of power, he can note Libby's high status, and on all those bases can deliver a much longer sentence.

My vote for a sentence: "25 years, starting now, see ya."

We don't know what he will do. But he has the grounds and the authority to do as much as we would hope.

When Fitz made the statement at the filing og the charging document, he effectively stated that he had determined as a matter of fact and law (at least for his purposes as the representative of the US Government) that she was covert under the act.

Incorrect. On the contrary, he was quite explicit about not touching the issue of her covertness with a ten-foot-pole. I defy you to show where in the transcript of Fitzgerald's statement he stated, effectively or otherwise, what you claim.

And out of curiosity, what is the basis for your belief that the Court determined she was covert under IIPA during the CIPA process?

Also, even if you were correct about reading between the lines, it's non-responsive to my point, which is that it is significant that it no longer requires reading through the lines to discern that investigators concluded early on that Plame qualified as covert under IIPA. There's just no denying it now from Toensing and the rest.

Jeff - Agreed with your last. I am flat beat from my own ten hour day in the local justice system, if I can find the energy, I will go back and give you the basis for my statements. On the Fitz statement, I am certain you have seen the same thing I referred to; just interpreted it differently. Without going back and retrieving the exact language, it has always been my take that Fitz is VERY careful with his words and that was a carefully drawn statement and indictment and I firmly believe that he left that interpretation there in between the lines intentionally to combat the already high volume "no IIPA crime" tripe. I may be wrong, but I have thought that from the day it happened. Now for the rest of my diatribe that you challenge, I can back up that hypothesis, but unlike EW, I cannot do it off the top of my head. The thin basics I can recall right now are that there was an evidentiary determination or something to that effect in relation to Judy Miller's compelled testimony to the grand jury, refusl to comply and order to jail made long before the trial. It was made by a Judge other that Walton (Tatel?); may even have been a panel. At any rate, there was a sealed affidavit from Fitzgerald submitted in relation to the determination. By the way I read the decision at the time, and the subject matter at bar, I thought it was pretty damn clear that Fitz had to have avowed that Plame was covert in the affidavit that was sealed.

bmaz- Judge Walton explicitly stated during the Libby trial that he had no idea what the status of Valerie's covertness was. I find it hard to believe that he would say that if he had in fact made a finding or knew of a finding regarding her status.

Jeff: no longer requires reading through the lines to discern that investigators concluded early on that Plame qualified as covert under IIPA. There's just no denying it now from Toensing and the rest.

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion.

EW: That WINPAC ruse sure worked like a charm, didn't it?
You mean the ruse where Foley was named as Valerie's boss in Wilson's article in Vanity Fair? Or do you mean the ruse where WINPAC is listed at Valerie's employer in the introduction to Joe's softcover edition of his book via VinceCannistraro

Contrary to the Senate Intelligence Committee’s reporting, former CIA official Vincent Cannistraro said that Plame worked undercover for the Center for Weapons Intelligence, Nonproliferation, and Arms Control, or WINPAC. (Wilson xl)

Boy, I have stepped into a hornet's nest here haven't I? Maybee, I don't think that is how Walton phrased it and I find it hard to believe that he would not know. Perhaps I am nuts, but I have thought you had to be willfully ignorant and dismissive of the available facts to not believe she was a covered asset under the IIPA from the time the CIA first promulgated their initial complaint. But that is just my opinion; which, coupled with 25 cents, won't even buy a phone call anymore.

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion.

Oh please. What you can and I'm quite sure will go on denying is that Plame was covert under IIPA. What you cannot legitimately deny is the different claim that investigators determined early on that Plame was covert under IIPA. In denying the first claim, you're going to simply argue that the investigators, who had a lot more information than you or me, were wrong in their determination, and you'll point out that they never proved it beyond a reasonable doubt, and it's a statutory definition, not something that corresponds to anything in the reality of the CIA (where Plame was undercover, period). And that's fine. But crucial to Toensing's argument has been the denial of the second claim. That is, Toensing et al have argued the investigation was illegitimate because it had no basis because the investigators knew that Plame did not qualify as covert under the IIPA. And that is an argument that can no longer legitimately be made.

Again, Toensing et al will undoubtedly shift ground and argue that the determination by Fitzgerald and the investigators that Plame was covert under IIPA was itself a manifestation of their bias, or some such nonsense. But they can no longer argue that Fitzgerald himself knew that Plame was not covert under IIPA, and that therefore no violation of IIPA could even conceivably have occurred.

bmaz, according to several sources, including Marcy's liveblogging on January 29, here is what Judge Walton said:1:48

Btw, Dickerson is upstairs in the court room, everyone wants to know why this is different than what he reported.

Now Ari has a kind of pouty face on.

Walton, In reference to the Witness' testimony about what he read in the newspaper. That testimony is only relevant as it relates to his state of mind was. It has no relevance to this case. I don't know based on what has been presented to me, what her status was. It's totally irrelevant to this case.

Now, you can say it is willful ignorance, but please keep the difference between other peopl'e willful ignorance and your own wishful thinking.

Any time you're prepared to respond to my response to you explaining why you're wrong about whether Toensing and you et al can legitimately claim that Fitzgerald knew that Plame was not covert, I'm ready for it.

In the meanwhile, let me note that while I don't think bmaz is right, it's worth noting that Walton was being emphatic for the purpose of making his point to the jury, but at the same time he slipped in an important qualification. What he actually said is:

I don't know, based upon what's been presented to me throughout this trial, what her status was. But in any event, whatever her status was, that's totally irrelevant to this case. That's not an issue that you should concern yourself with. And you cannot, in any way. Use that testimony in your assessment of Mr. Libby's guilt or innocence in this trial.

And of course I don't think Miller got it from Cannistaro. Don't you know that smart righties take the view that Libby took one for the team, and that Plame was indeed part of the story, and Libby was perfectly within his rights to raise her role with reporters?

Jeff, thank you for saving me the keystrokes to respond to Maybee. As to the rest of your disagreement with my thoughts, you may be right and I might be wrong. Or not. I don't know, and I certainly don't claim that my thoughts are definitive in the first place. I actually think, based upon recollection, the interpretation of the Miller determination is much stronger than you might think, but cant' prove up my conclusion thereon because, ultimately, the affidavit is sealed. To be honest, this is a pretty interesting discussion, but I think we are in agreement in the greater scope of things, just for differing reasons. I certainly respect your thoughts, you are very informed on all this, and that is a good thing.

Jeff-
I'm not going to make Toensing's arguments for her. They are not my own.

As far as Walton's statement, he made it several times in several different ways. Do you have transcripts? Can you quote all of the times he said it? I actually think that is unnecessary. He seems not the type to imply something without meaning it by making clever qualifiers. There was simply no reason to bring his own lack of knowledge into it unless he was making a strong, clear point.

And of course I don't think Miller got it from Cannistaro. Don't you know that smart righties take the view that Libby took one for the team, and that Plame was indeed part of the story, and Libby was perfectly within his rights to raise her role with reporters?

I really don't know what this has to do with Judy supposedly having some sort of a WINPAC ruse to cover for Libby, when many of Wilson's own supporters have tied Valerie to WINPAC.

Well Maybee, I guess I'll field this one. To the best of my recollection, Walton indeed consistently parsed his words exactly along the lines Jeff indicated. As to your "There was simply no reason..." pronouncement, what part of maintaining jury neutrality on an irrelevant and immaterial tangential issue do you not understand? Clearly, you have spent little time in jury trial courtrooms, because trial judges engage in ruses of this very nature every day to keep the jury on the right track and off of tangents involving inadmissable and/or irrelevant evidence.

Ok, just to be clear then, when you responded to my initial argument against Toensing's position, and when you responded by citing one of my explicit citations of Toensing, you weren't taking her part in that argument. Ok. And furthermore, when you said

I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion

you simply misunderstood what I was arguing against Toensing, right? You're just saying that it remains contestable whether Plame was in fact covert under IIPA, correct? You're emphatically not contesting the actual claim I made, which is that it is now incontestable that Fitzgerald himself determined and believed that Plame was covert, correct? Unless I hear from you otherwise, I'll take that as conceded.

Because at the moment that's good enough for me, since Toensing's entire argument falls apart on that basis.

As for the Winpac, I don't understand why you brought Cannistraro into it in the first place. And we know for certain that Plame worked not at Winpac but at CPD.

Yes, bmaz, it is true that I have spent little time in front of a jury. However, you are making an assertion with no evidence. We can agree to disagree, but unless you can come up with more than your own gut feeling and recollection, I'm afraid I'll find you unconvincing. Find me something besides your own gut feeling, and I'll listen.

As for this: pronouncement, what part of maintaining jury neutrality on an irrelevant and immaterial tangential issue do you not understand?
no part. There is no part of your statement that I do not understand.

trial judges engage in ruses of this very nature every day to keep the jury on the right track and off of tangents involving inadmissable and/or irrelevant evidence.

Fascinating. I didn't find Walton to be the ruse type, however, and he had every ability to make his point without employing a ruse. I could be wrong. You could be wrong.

You're emphatically not contesting the actual claim I made, which is that it is now incontestable that Fitzgerald himself determined and believed that Plame was covert, correct? Unless I hear from you otherwise, I'll take that as conceded.

I will concede (as if it takes a concession) that he now says that they had determined she was covert.

As for the Winpac, I don't understand why you brought Cannistraro into it in the first place. And we know for certain that Plame worked not at Winpac but at CPD.

Because as I understood EW, she was implying that Judy made up the WINPAC stuff to give Libby plausible deniability for having been a source. That doesn't wash, because other people associated with Wilson have placed Plame at WINPAC.
Judy could have gotten WINPAC from any one of the people that publicly spread that information.
In fact, it makes no sense to assume Libby had anything to do with the WINPAC information BECAUSE people like Cannistrano and VF were spreading the WINPAC information. He certainly had no abiity to make them play along.

I will concede (as if it takes a concession) that he now says that they had determined she was covert.

Evasive and lame. That's not what I asked. Do you seriously have any doubt that they had determined that she was covert? Do you seriously think Fitzgerald is lying about this? Or rather, do you concede that the investigators determined - or, if you prefer, became convinced - early on that Plame was covert under the IIPA?

I think she had been covert at some time.
I think Fitzgerald is a tough prosecutor that wants a tough sentence.
I find it interesting that he is bringing this up for the first time in the sentencing phase of this case.

About as well as my "xxxx is going to be the next Watergate" project is going. Thanks for asking, bmaz.
So can I put you down in the category of believing everything a prosecutor asserts?

I'm sure I'm being stubborn here about exactly what degree of "determinging she met the IIPA" Fitz and crew did. This is the first time he's brought it up. I don't especially trust Fitzgerald. So sue me.

If you read the government memo on sentencing, you'll see why it is being brought up now. two reasons: 1) there is now a declassified document they can point to, and 2) it does affect sentencing, as the punishment for obstructing the investigation of an underlying crime is tied to the potential punishment for that underlying crime.

I still think the President's knowledge of the Plame outing, and Libby and Cheney's actions, remains a big unknown. After all, Libby was an Assistant to the President as well as Cheney's chief of Staff. I sure wish Tenet would say more about the Plame case, or be asked by the press to say more.

To add to emptywheel's explanation, Fitzgerald is only bringing it up now because had he done so earlier, he would have brought in a claim about Plame's status that he would have had to prove beyond a reasonable doubt which, as we know, was entirely superfluous to making the case against Libby that he was making. But now in the context of sentencing he is not limited to claims that have been proven beyond a reasonable doubt or evidence introduced at the trial.

I take it you've now given up the notion that Fitzgerald is just outright lying about the investigators early on determining that Plame was covert under IIPA, and you've moved to the position I expect Toensing to reoccupy, namely, that it was a poor determination.

I'll be curious to see whether Toensing continues to claim that covertness under IIPA requires being stationed abroad, given the little bit more we've learned about Plame's undercover work overseas.

Tenet has something very direct to say about all this. For those who have his book, check p. 462.

He claims exclusive authority for the CIA to determine who it employs in covert status, and who is open. "Nor can we have outsiders determine who is 'legitimately' undercover -- ever -- because it suits the politics of the moment. To do so is irresponsible and dangerous."

Tenet also says that at the time Novak called CIA pre-publication, he was not informed of his call, that it was only two weeks later when CIA Lawyers had made the determination to file a Crimes Report with DOJ was he briefed on some details, and at the time the crimes report was filed, they had no idea where the leak of Plame-Wilson's identity might have come from.

So -- I think things are a lot more clear than they look. CIA Lawyers made the determination the name was linked to covert status -- they briefed a crime report to DOJ -- and when Fitzgerald took over the case he would have had that paper and any relevant DOJ investigation that had been done by FBI during the fall of 2003. But the core of it is that CIA decides who is and who is not covert -- not Victoria Toesning, Not someone in the WH, not the Press, not politicians.

I think what bmaz is remembering is the statement in the Tatel opinion, something to the effect that there were allegations that pointed to a very serious crime or something like that. Sorry I don't have it in front of me.

But the bottom line is that it must have been in the CIA referral to DOJ, and Walton may have seen that in some pre-trial proceeding. He was trying to kleep everyone's eye on the ball.

That's actually a distinct point. There is covert by the CIA's determination, which is what Tenet is talking about. And then in fact there is a distinct category of covertness as defined in the IIPA statute, which is the relevant one for any possible violation of the IIPA. The law, thanks to the fine work of Toensing among others, is goofy in all sorts of ways. But it's the relevant law. So someone could be defined as covert by the CIA but not be qualified as covert according o the IIPA.

Mimikatz

I think you're right that Tatel was the reference, and I actually alluded to this, because Tatel was working off the footnote in Fitzgerald's affidavit to no small extent. So part of the inference was that if Tatel clearly took the footnote to be indicating that she was covert as far as Fitzgerald was concerned, and Fitzgerald did not correct him, that was telling.

On July 20, 2004, U.S. District Court Judge Thomas Hogan issued his Memorandum Opinion in In re Special Counsel Investigation rejecting Matt Cooper's and Tim Russert's motions to quash grand jury subpoenas served on them by Patrick Fitzgerald, the Special Counsel appointed by James Comey as Acting Attorney General to investigate "the potentially illegal disclosure of the identity of CIA official Valerie Plame." In re Special Counsel Investigation, 332 F.Supp.2d 26, 26 (D.D.C. 2004). Why was the disclosure potentially illegal? Because 50 U.S.C. 421 (the Intelligence Identities Protection Act) criminalizes intentionally disclosing the identity of a covert agent by anyone having access to classified information, a violation of 50 USC 421 (a).

We now know that the CIA complained to the Department of Justice after Novakula's article appeared in the Washington Post and other newspapers on July 14, 2003. Why would the CIA refer the matter to DOJ, if Ms. Plame was not a covert agent? The CIA obviously knew she was a covert agent, which she confirmed in her testimony before Congress. The CIA wanted DOJ to find out if someone with access to classified information identifying her as a covert agent, intentionally disclosed any information identifying her as a covert agent to an individual not authorized to receive classified information (i.e., Novakula).

According to Toensing, I guess we're supposed to believe that the CIA asked DOJ to investigate the outing of a non-covert agent, which is ludicrous. Equally ludicrous, I guess she further wants us to suppose that Mr. Comey decided to appoint Fitzgerald to investigate a non-criminal act. Does anyone really think that Fitzgerald didn't obtain confirmation from the CIA that Ms. Plame was a covert agent before he served subpoenas on Cooper and Russert? He certainly would have realized that Judge Hogan would have quashed the subpoenas if Ms. Plame was not a covert agent because the IIPA could not have been violated unless she was a covert agent.

Cooper and Russert filed motions to quash the subpoenas because they claimed that the First Amendment protected them from disclosing their sources of information. They did not claim that Fitzgerald was harassing them without a legitimate purpose or acting in bad faith, id. at 32, which they certainly would have done if they had any reason to believe that Ms. Plame was not a covert agent. Fitzgerald filed his response in the form of an ex-parte affidavit under seal. In denying their motions to quash, Judge Hogan wrote, "In the absence of bad faith or with the sole purpose of harassment, Branzburg [v. Hayes, 408 U.S. 665 (1972)], makes clear that neither the First Amendment nor common law protect reporters from their obligations shared by all citizens to testify before the grand jury when called to do so." Id. at 28.

I'd be willing to bet my life that Fitzgerald's affidavit asserts that Ms. Plame was a covert agent and explains why he believes that to be the case.

In in re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir. 2005), a three-judge appellate court panel agreed with Judge Hogan. All three judges agreed that Fitzgerald's affidavit established a legitimate basis for the information that he sought to obtain from the reporters.

Anyone who continues to spout this criminal administration's talking points that Plame was not a covert agent and no underlying crime was committed is an idiot, a liar, or both.

I think Toensing's legal interpretation of 'covert' vis IIPA is probably irrelevent, even though she did participate in creating the crappy law. She's certainly conflicted in this case, I don't believe a thing she says -- I just can't see her being, in some unofficial capacity, the sole arbiter defining the meaning of a Federal law.

A covert agent is defined in 50 U.S.C. 426(4)(A)(i) and (ii) as: A present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency--

(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States.

The dispute or alleged dispute, such as it is, appears to center on the undefined "served outside the United States." I see no reason to equate "served" with "stationed." I believe that a single overnight trip outside the continental US to Mexico or Canada, for example, would satisfy the served requirement, if the purpose of the trip was job-related and their identity was classified information. I have not found a case that rules on this issue. I suspect Ms. Plame frequently traveled outside the US on company business while she was associated with Brewster Jennings.

Fitzgerald has been in an awkward position because he wants to avoid officially confirming that Ms. Plame was a covert agent, if only to protect anyone formerly associated with her from reprisals by agents of a foreign country. Such a person might, for example, have lived in Iraq, Iran, or Pakistan and might have been summarily executed, whether innocent or guilty, for passing information to her or to one of her colleagues. Better to wait until no one remains in harm's way, which presumably now is the case. I suspect that his concern is one of several reasons why he decided against indicting Libby for violating IIPA. Unlike many commenters, I don't believe that it would have been difficult to prove. Since Libby lied and lied and lied, he didn't have to prosecute him for violating IIPA, so Fitzgerald killed two birds with the indictment: nailed Libby for lying and continued to protect Ms. Plame, her former associates, and contacts.

Rove, Toensing, Novakula and others attempted to exploit the situation with their talking points as they will continue to do because they cannot tell the truth about anything without bursting into flame like a vampire exposed to light.

To add to emptywheel's explanation, Fitzgerald is only bringing it up now because had he done so earlier, he would have brought in a claim about Plame's status that he would have had to prove beyond a reasonable doubt which, as we know, was entirely superfluous to making the case against Libby that he was making. But now in the context of sentencing he is not limited to claims that have been proven beyond a reasonable doubt or evidence introduced at the trial.

Right. And I am saying if it was superfluous to the case he was making against Libby at the trial, it is superfluous to the sentencing. He is bringing it up now because he won't have to prove it beyond a reasonable doubt (nor is he offering any underlying documentation), nor will he have to prove that Libby had an inkling that it might be true. He is seeking to sentence Libby using the underlying crime as a guideline, without ever having brought the underlying crime to trial.

I don't know about the rest of you, but I'd want to depart from the guidelines in the upward direction because I doubt that the Sentencing Guideline Commission had the enormity of his crime in mind when they pigeonholed the upward departure to a rather slight increase in guideline levels for abuse of authority. I'd give the SOB the maximum possible consecutive sentence under the statute because he had nothing less in mind than the overthrow of our representative system of government and the U.S. Constitution. Outing a covert agent specializing in the development of WMDs in Iran served three goals: (1) eliminated the CIA's ability to contradict Boy George and his Dick's future claims that Iran has WMDs, (2) undermined Ambassador Wilson's credibility regarding the infamous 16-word claim in Boy George's SOTU address, and (3) served a warning that this criminal administration would attack any future whistleblower's family to retaliate against anyone thinking about telling the truth. Even the mob had more honor than these scumbags.

I don't know Scooter Libby but I know what he represents. He and others like him need to get the message: they have committed treason and conspired to commit or commit crimes against humanity.

I've represented more than a half dozen serial killers in my career as a criminal defense lawyer and I have to say in all honesty that I regard Boy George and his Dick, Wolfowitz and the neocons, and all of their enablers as far more dangerous to peace on earth as individuals than all of the serial killers put together that I've represented.

I would take considerable delight in killing each one of them, except that I am opposed to the death penalty and realize that their own horrific karma will deliver them to a fate that is worse than anything that I can imagine or do.

May God Have Mercy On Their Souls. I despise them so much that I can't.

Right. And I am saying if it was superfluous to the case he was making against Libby at the trial, it is superfluous to the sentencing. He is bringing it up now because he won't have to prove it beyond a reasonable doubt (nor is he offering any underlying documentation), nor will he have to prove that Libby had an inkling that it might be true. He is seeking to sentence Libby using the underlying crime as a guideline, without ever having brought the underlying crime to trial.
****************

Sorry, but you're wrong. In Booker Fan Fan the U.S. Supreme Court held that sentencing factors each must be proven beyond a reasonable doubt or they cannot be considered in determining the sentence. I can assure you that Fitzgerald knows that and Libby's defense team will open the door to a flood of damaging shit to Libby if they challenge Fitz's argument.

Let me add that you didn't read Fitzgerald's arguments themselves very carefully either. This is yet another instance where you criticize Fitzgerald for doing what is perfectly conventional practice in our judicial system. If you've got a complaint about prosecutors using things that were not used in the trial during the arguing over sentencing, take it to the judicial system that allows it, not Fitzgerald just because you're defensive of Libby. Furthermore, Fitzgerald lays out very explicitly why he is including certain information, including this information, why it is relevant to what is done vis-a-vis the sentencing guidelines.

I'm sure I'm being stubborn here about exactly what degree of "determinging she met the IIPA" Fitz and crew did. This is the first time he's brought it up.

Should I be taking this as a non-evasive acknowledgment that yes, indeed, the investigators early on concluded that Plame was covert under IIPA, and that therefore a violation of IIPA could have happened and needed to be investigated?

Are you talking about being evasive again, Jeff?
When you don't answer my questions when I want you to or the way I want you to, should I just assume it is because you agree with my thoughts or don't have a good answer?
I can do that.

Excuse me, you brought up the issue of evasiveness again, not me. Of course, I did answer your question about whether I'd read the February 12 memo, and you evidently had something else in mind to ask which I don't believe you'd asked. On the other hand, I'd been asking you some very specific questions, and you kinda sorta answered, while clearly resisting a concession and simultaneously contradicting your own previous practice ("I don't want to take Toensing's part in the argument, even though I've just taken Toensing's part in the argument.") That's all something more than not answering the way I want you to.

Jeff: no longer requires reading through the lines to discern that investigators concluded early on that Plame qualified as covert under IIPA. There's just no denying it now from Toensing and the rest.,/i>

Me:I think as long as that goes uncharged and unproven in court, there will be legitimate denying of his current assertion.
---

I can't take Toensing's part in the argument. I'm not her, I don't speak for her, I don't have her background, I don't know her.
All I said was I think there will still be legitimate denying of his assertion, because he hasn't provided any supporting information or proven anything in court.
Maybe I'm wrong. Maybe Toensing will no longer deny it. I just think she will (because she won't trust him!). I'm making a guess.

I don't know if anyone caught this interesting "mistake" on page 2 of the Government's Sentencing Memorandum. I just about fell out of my chair when I read it. Here it is in all of its glory:

"It was apparent from early in the investigation that classified information relating to
a covert intelligence agent had been disclosed without authorization. Also early in the
investigation, investigators learned the identities of three officials – Deputy Secretary of State
Richard Armitage, Senior Adviser to the President Karl Rove, and Mr. Libby, the Vice-
President’s Chief of Staff – who had disclosed information regarding Ms. Wilson’s CIA
employment to reporters."

My oh my! What a difference it makes when you leave out a comma. President Karl Rove.

If you're back here at all, you're misreading the purpose of cross-referencing sentencing. It is NOT to punish for a crime that was not proven. It is to tie the punishment for Obstruction to the crime for which the investigation was obstructed. So all Fitz has to do in this case is prove Libby knew they were investigating IIPA. Since Libby's team has admitted this in court, I'd say that's proven.

It helps, too, that Fitz can show that Libby's lies were tailored TO the IIPA statute. In other words, they can prove, if need be, that Libby's lies were designed to prevent the govt from making a determination of whether he violated IIPA.

I think you can agree that someone should have greater punishment for obstructing an investigation into espionage than obstructing the investigation of the theft of a candy bar.

Obstruction already comes with it a wilfullness of obstructing a specific investigation, so it has already been decided by a jury that Libby was wilfully trying to obstruct an IIPA investigation.

Because her argument is not that Plame was not covert, which I'm sure she'll somehow manage to keep claiming. Her argument has been that Fitzgerald and the investigators knew early on that Plame was not covert, and therefore IIPA could not even conceivably have been violated, and therefore the entire premise of the investigation was flawed and it should have been terminated immediately, thereby eliminating the very possibility of Libby committing the acts for which he has now been convicted and showing the inappropriateness of the whole thing.

That comment was linked and lauded at TalkLeft, as well it might have been. It ought to be obvious to anyone that a declarative statement of a prosecutor's opinion hardly resolves the underlying factual question (I have not read this thread to see how many folks are stuck on that point).

However, as to whether the investigation was conducetd in good faith, the prosecutor's opinion is certainly relevant. And if Fitzgerald believed in good faith and with good reason that he could prevail in court on the question of Ms. Plame's covertiness, then a major part of the Toensing argument becomes, hmm, problematic.

One might argue that it became obvious early in the investigation that no one was alerted to Ms. Plame's status, so that the knowledge/intent portion of the IIPA could never be satisfied. But that could only be learned by investigating, yes?

Or, one might argue that other elements - e.g., the CIA was taking steps to conceal her identity - were simply not satisfied given her daily drive to Langely.

Well - we still don't know what a judge would rule as to her covert status. Per Newsweek the defense will brief this point in their response due in a few days, but that doesn't oblige Walton to rule on the relevance of the point, so he may duck it. But to save readers here any suspense, I intend to continue to argue that we still don't know her actual status, and I will note that the expression of a prosecutor's opinion long after the trial is hardly dispositive.

Fitzgerald is only bringing it up now because had he done so earlier, he would have brought in a claim about Plame's status that he would have had to prove beyond a reasonable doubt which, as we know, was entirely superfluous to making the case against Libby that he was making.

Hmm, that is my current official editorial position, as soon as I post it - Fitzgerald thought he had a strong and simple perjury case against Libby; arguing the issue of her covertness and winning would not help him much (it would have saved some verbal gymnastics about Libby's motive at trial), but arguing and losing would have been a real setback - the defense would have hammered the "trial about nothing" theme to death.

So he ducked it for the trial and is offering his opinion now. Smart tactics. But (I am spining up now!), we don't know who made the determination of her status at DoJ (Fitzgerald says "very early" - pre appointment?), we don't know who much research went into it, we don't know why even now (per the Novak column) the CIA Counsel still won't opine on her status - I would not be afraid to attack the basis of his supposedly good faith determination.

Just for starters, where is the opinion and analysis backing the claim, who wrote it, did the CIA endorse it, and so on - no one other than Fitzgerald knows, and he certainly did not say in this filing.

Jeff is on the right trail - Fitzgerald's opinion does not resolve the question of her status, but *might* resolve the question of whether this was a good-faith investigation. But since we have seen only the product of the DoJ analysis and none of the support, accepting his good faith is itself an act of faith.

For folks not active in the faith-based community, the possibility that an aggressive prosecutor will stretch statutes to fit his facts willl not be news.

If you're back here at all, you're misreading the purpose of cross-referencing sentencing. It is NOT to punish for a crime that was not proven. It is to tie the punishment for Obstruction to the crime for which the investigation was obstructed. So all Fitz has to do in this case is prove Libby knew they were investigating IIPA. Since Libby's team has admitted this in court, I'd say that's proven.

I'm not misreading, I'm arguing the other side of the same coin.
The stated purpose may be to tailor the obstruction charges to the crime investigated. The effect is to add punishment based on an uncharged, unproven crime.

I think you can agree that someone should have greater punishment for obstructing an investigation into espionage than obstructing the investigation of the theft of a candy bar.

I do agree, somewhat. However, if the theft of the candy bar actually happened and the espionage did not happen, is it the proper justice to adjust the punishment?

I do want someone who commits a murder (or assists in committing murder) to not get away with obstructing his way into a light sentence. On the other hand, I don't want a prosecutor to tell the suspected candy bar thief that he's investigating murder charges and then suggest sentencing guidelines based on obstructing a murder investigation. That's the outer boundary of what Fitzgerald is arguing.

In the end, it will be the judge that has to determine how reasonable the prosecutor's argument is.